# EUR-Lex - 52012PC0438 - EN

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# 52012PC0438

**Proposal for a COUNCIL DECISION on the signing, on behalf of the Union, and provisional application of the Agreement providing a general framework for enhanced cooperation between the European Union and the European Organisation for the Safety of Air Navigation /* COM/2012/0438 final - 2012/0212 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

On 6 October 2011, the Council granted a
mandate to the Commission authorising it to open negotiations with the European
Organisation for the Safety of Air Navigation (Eurocontrol) in order to
conclude a cooperation agreement between the European Union (EU) and
Eurocontrol. The Agreement should acknowledge the principles of the Single
European Sky (SES), notably the role of the EU as the single regulator for air traffic
management (ATM) and the use of the technical expertise of Eurocontrol to help the
EU to deliver ATM improvements in Europe in accordance with the SES legal
framework and to support the EU in the implementation and development of the
SES and other related policies (environment, climate change and research). The Agreement
should also facilitate further institutional reform of Eurocontrol, for
example, in establishing a new relationship between Eurocontrol and the
European Aviation Safety Agency (EASA), and provide a framework for potentially
sensitive issues such as pan-European civil-military cooperation.

Based on the negotiating directives of the
mandate, a draft agreement was initialled by the two parties on 24 April 2012.

The proposed draft Agreement defines the
terms and conditions of enhanced cooperation between the EU and Eurocontrol to
support the EU in the implementation and development of ATM in accordance with
the SES legal framework and related EU policies. The objectives are: to
contribute to timely and consistent implementation of the SES within the EU and
with States that agree to be bound by the SES; to facilitate the necessary
civil-military cooperation on ATM in the SES and the use of Eurocontrol
expertise in these areas; to facilitate the involvement of non-EU Member States
in the SES. In addition, the draft Agreement aims to ensure synergies and avoid
duplication of EASA’s work in safety-related ATM matters and environmental
issues and to consider Eurocontrol’s pan-European dimension.

The proposed draft agreement lists the areas
of cooperation concerning the implementation of SES, SESAR and other related EU
policies that will be defined further in separate annexes to the Agreement.

The proposed draft Agreement defines the
forms and mechanisms of cooperation and coordination between the parties
including the stakeholder consultation processes. A Joint Committee set up by
the agreement will be responsible for its management and functioning. In
addition, the funding of the activities is defined in accordance with the rules
applicable to the parties’ respective budgets.

The Commission proposes to the Council to
adopt:

·
a decision authorising signature of the Agreement
and its provisional application before entry into force;

·
once this first decision has been adopted, a
further decision to conclude the Agreement with a view to its entry into force
based on the consent of the European Parliament.

2.           LEGAL ELEMENTS OF THE PROPOSAL

The proposed Council Decisions are both
based on Article 100, paragraph 2 of the Treaty on the Functioning of the
European Union (TFEU). In addition the Council Decision on the signing and
provisional application of the agreement is based on Article 218, paragraph 5
of the TFEU, while the Council Decision on the conclusion is based on Article
218, paragraph 6.

The Agreement on enhanced cooperation
between the EU and Eurocontrol is an efficient binding legal instrument that
fosters technical cooperation between both parties. It establishes a general
framework that allows cooperative activities to be set up in the field of ATM
and related policies. The proposed agreement does not impose any additional
administrative or financial burden on Member States’ authorities.

2012/0212 (NLE)

Proposal for a

COUNCIL DECISION

on the signing, on behalf of the Union,
and provisional application of the Agreement providing a general framework for
enhanced cooperation between the European Union and the European Organisation
for the Safety of Air Navigation

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 100(2), in
conjunction with Article 218(5) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       The European Commission
has negotiated on behalf of the Union an Agreement providing a general
framework for enhanced cooperation (hereinafter ‘the Agreement’) between the
European Union and the European Organisation for the Safety of Air Navigation,
in accordance with the Council Decision of 6 October 2011 authorising the
Commission to open negotiations.

(2)       The Agreement was
initialled on 24 April 2012.

(3)       The Agreement should be
signed and applied provisionally, pending completion of the procedures for the
conclusion of the Agreement.

(4)       It is necessary to lay
down procedural arrangements for the participation of the Union in the Joint
Committee established under the Agreement,

HAS ADOPTED THIS DECISION:

Article 1

The signing of the Agreement providing a general
framework for enhanced cooperation between the Union and the European
Organisation for the Safety of Air Navigation is hereby approved on behalf of
the Union, subject to the conclusion of the Agreement.

The text of the Agreement is attached to
this Decision.

Article 2

The Council Secretariat General shall
establish the instrument of full powers to sign the Agreement, subject to its
conclusion, for the person(s) indicated by the negotiator of the Agreement.

Article 3

The Agreement shall be applied provisionally, in
accordance with Article 13.1 of the Agreement, as from the date of its
signature, pending its entry into force.

Article 4

1. The Union shall be represented by the
Commission in the Joint Committee established under Article 7 of the Agreement.

2. The Commission, after consultation of a Special
Committee appointed by the Council, shall determine the position to be taken by
the Union in the Joint Committee, including with respect to:

(a) the adoption of Annexes to the Agreement;

(b) the adoption of amendments to Annexes
to the Agreement.

Article 5

The Commission may take any appropriate
action under Articles 5, 6, 8, 9,10 and 11 of the Agreement.

Article 6

The Commission shall regularly inform the
Council of the implementation of the Agreement.

Article 7

This Decision shall enter into force on the
date following that of its publication in the Official Journal of the European
Union.

Done at Brussels,

For
the Council

The
President

DRAFT

AGREEMENT

BETWEEN

THE
EUROPEAN UNION

AND

THE
EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION

PROVIDING
A GENERAL FRAMEWORK FOR ENHANCED COOPERATION

The European Union (EU)

and

The European Organisation for the Safety of
Air Navigation (EUROCONTROL)

Hereinafter referred to as ‘the Parties’

HAVING REGARD to the Treaty on the
Functioning of the European Union (hereinafter ‘TFEU’), and in particular
Articles 218 and 220 thereof;

HAVING REGARD to the EUROCONTROL
International Convention relating to Cooperation for the Safety of Air
Navigation of 13 December 1960 as amended by the Protocol signed at Brussels on
12 February 1981 (hereinafter ‘EUROCONTROL Convention’), and in particular
Articles 7.2 and 11.3 thereof;

HAVING REGARD to Measure No 11/74 of 12 May
2011 taken by the Permanent Commission of EUROCONTROL delegating authority to
the Agency to open negotiations for the conclusion of a High Level Agreement
with the EU and Measure No XXX of [date] taken by the Permanent Commission of
EUROCONTROL approving the negotiated Agreement;

HAVING REGARD to the respective present
legal and institutional contexts of the Parties and their contributions to the
implementation of the Single European Sky (SES) within and beyond the EU;

HAVING REGARD to the competence conferred
upon the EU in matters related to the SES;

HAVING REGARD to the role of EUROCONTROL as
the intergovernmental pan-European civil-military organisation specialised in
the field of air traffic management (ATM);

WHEREAS the Parties share the vision of
achieving an optimal and integrated European ATM network, offering, through all
phases of air transport, and in conjunction with other means of transport, a
high degree of safety, cost-efficiency, capacity and environmental protection,
for the benefit of passengers and citizens;

WHEREAS EU legislation entrusts the
European Commission with a number of tasks related to the implementation of the
SES, for which expert support is needed;

WHEREAS EUROCONTROL has evolved, since
1960, into a unique centre of expertise in the domain of ATM, bringing as added
value pan-European and military dimensions and assistance to States in the
performance of public domain services and functions, and should continue to
assist its Member States, including in the implementation of SES and other
related EU policies, and to provide a pan-European platform to facilitate the
enhancement of military cooperation on ATM;

WHEREAS EU legislation establishes that the
European Commission may issue mandates to EUROCONTROL in order to develop
implementing rules related to the establishment of the SES;

WHEREAS the EU recognises the essential
contribution of EUROCONTROL to support the EU in its role as regulator in order
to implement the SES and other related EU policies.

WHEREAS the North Atlantic Treaty
Organisation (NATO) and EUROCONTROL concluded, on 8 May 2003, a Memorandum of
Cooperation;

WHEREAS the European Commission and
EUROCONTROL concluded, on 22 December 2003, a Memorandum concerning a framework
for cooperation;

WHEREAS EUROCONTROL was designated by a
decision of the European Commission of 29 July 2010 as the Performance Review
Body of the SES, in accordance with Regulation (EU) No 691/2010, and
EUROCONTROL accepted this designation by Directive No 10/74 of the Permanent
Commission of 15 September 2010;

WHEREAS EUROCONTROL was nominated by a
decision of the European Commission of 7 July 2011 as the Network Manager for
the ATM Network Functions, in accordance with Regulation (EU) No 677/2011, and
EUROCONTROL accepted this nomination by Directive No 11/77 of the Permanent
Commission of 1 September 2011;

WHEREAS the Parties have a long-standing
relationship and history of cooperation in ATM and in the implementation of SES
and other related policies, and wish to consolidate this relationship and fully
coordinate further actions;

WHEREAS the Parties should ensure synergies
and avoid duplication in safety-related ATM matters and environmental issues;

WHEREAS the long-term application of
existing arrangements between the European Commission and EUROCONTROL should be
assessed in the light of this Agreement and, where appropriate, confirmed and
strengthened through this Agreement;

WHEREAS the implementation of this
Agreement should not lead to a duplication of funding of the cooperative
activities referred to in this Agreement and therefore should not result in a
nominal contribution of the EU to the budget of EUROCONTROL;

CONSIDERING that the EU objective is to
extend the geographical coverage of the SES beyond the EU;

CONSIDERING that, without prejudice to the
relationships between the Parties and their respective membership and to the
rights and obligations of the Member States under the EUROCONTROL Convention
and the TFEU respectively, it is desirable to establish complementary mutually
reinforcing cooperation and coordination mechanisms between the EU and
EUROCONTROL in the implementation of SES and other related policies, in
particular in the fields of environment, including climate change, and research
and development with a view to making better use of the expertise and support
of EUROCONTROL;

CONSIDERING that the support provided by
EUROCONTROL to the EU should comply with the principles of transparency,
impartiality and independence;

CONSIDERING that the evolution of the
EUROCONTROL organisation whereby, in particular, it progressively aligns itself
to support the EU in the implementation of the SES with a view to improving the
overall performance of the European ATM network should be facilitated;

AGREE ON THE FOLLOWING:

1.         GENERAL SCOPE

1.1       The Parties agree to strengthen
and consolidate cooperation between the EU and EUROCONTROL in order to enable
EUROCONTROL to support the EU in the implementation of SES and related EU
policies within the EU, and beyond the EU in those States that agree to be
bound thereby.

1.2       The Agreement shall be without
prejudice to the rights and obligations of Member States as members of
EUROCONTROL or of the EU.

2.         OBJECTIVES

The objectives of this Agreement are:

–          to establish the main elements
for enhanced cooperation between the Parties in order to contribute to timely
and consistent implementation of the SES within the EU, and beyond the EU in
those States that agree to be bound by the SES, and the establishment of an
efficient air transport system through activities reflecting the respective
tasks and responsibilities of the Parties;

–          to facilitate the necessary
civil-military cooperation on ATM in the SES;

–          the recognition and utilisation
of EUROCONTROL expertise including civil-military cooperation to support the EU
in the implementation of SES and other related policies in particular in the
fields of environment, including climate change, and research and development,
in order to improve the performance of the European ATM network;

–          to acknowledge the value of
EUROCONTROL continuing to perform, as appropriate, support activities and
functions for the implementation of the SES;

–          to establish the necessary
cooperation to support and facilitate the involvement of non-EU Member States
in the SES, with a view to extending the implementation of the SES beyond the
EU and to progressively achieving the application of the SES legislative
framework by EUROCONTROL’s entire membership;

–          to ensure synergies and avoid
duplication of EASA’s work in safety-related ATM matters and environmental
issues, including, where appropriate, through the development of robust
cooperation mechanisms between EASA and EUROCONTROL, taking into account
EUROCONTROL’s pan-European responsibilities .

3.         AREAS OF COOPERATION

3.1       The areas of cooperation under
this Agreement are those necessary for the implementation of the SES, including
SESAR, and other related EU policies, in particular environment, including
climate change, and ATM research and development policies.

3.2       The cooperation shall address the
following subjects:

a)         Functional Airspace Blocks;

b)         National Supervisory
Authorities;

c)         Support in the field of Air
Traffic Management and Air Navigation Services (ATM/ANS) safety, including to
EASA, as set out in Article 2;

d)         Civil-military cooperation and
coordination;

e)         International coordination, in
particular towards ICAO and States other than Member States of the Parties;

f)          Air Traffic Management and
Communication/Navigation/Surveillance Services (ATM/CNS), including space;

g)         Air transport-related data and
statistics;

h)         Aviation environmental issues;

i)          Airport policy.

3.3       Further subjects of cooperation
may address in particular:

a)         ATM security;

b)         Spectrum policy;

c)         Unmanned Aircraft Systems (UAS).

3.4       The subjects and modalities of
cooperation shall be defined further in separate Annexes to this Agreement.

4.         FORMS OF COOPERATION

4.1       The Agreement shall be executed
through the following forms of cooperation:

a)         provision of mutual support;

b)         mechanisms for enhanced
cooperation, liaison mechanisms and offices, and the coordination of studies
and programmes and joint activities;

c)         mechanisms for the collection
and mutual exchange of information, data, and statistics, as appropriate;

d)         coordination of cooperation on
technical matters at working level in the context of ICAO.

4.2       With regard to military aspects
of the SES, the Parties shall ensure the best use of the relevant stakeholder
consultation processes.

4.3       The coordination and facilitation
of cooperative activities under this Agreement shall be accomplished on behalf
of EUROCONTROL by its Agency and on behalf of the EU by the European
Commission. EUROCONTROL may also support other EU bodies, as appropriate,
through specific instruments, with a view to optimising and integrating
existing expertise and resources.

5.         CONSULTATION AND INFORMATION

5.1       The Parties shall consult each
other regularly in order to coordinate to the fullest extent their activities
related to this Agreement. Each Party shall inform the other of any initiative
pertinent to this Agreement without prejudice to their respective
decision-making processes, in the areas of cooperation under Article 3, which
may be of interest to the other Party.

5.2       The Parties shall exchange
information that may be required for the implementation of this Agreement,
subject to their respective rules. Except when otherwise provided, the Parties
shall not disclose any information exchanged in connection with this Agreement
to any persons other than those employed by them or officially entitled to
handle such information nor shall they use it for commercial purposes. Such
disclosure shall extend only so far as may be necessary for the purpose of this
Agreement and shall be in strict confidence.

5.3       The relevant bodies of the
Parties shall convene if necessary to exchange views.

6.         CONFIDENTIALITY

6.1       Each Party shall take all
reasonable precautions necessary to protect information received under this
Agreement and its Annexes from unauthorised disclosure. A Party may, upon
providing information to the other Party, designate the portions of the
information that it considers to be exempt from disclosure.

6.2       The Parties agree to safeguard,
to the extent required under their respective rules, the protection of
classified information, if any, received from the other Party in application of
this Agreement.

6.3       In particular, subject to their
respective rules the Parties shall not disclose information received from each
other under this Agreement that is considered proprietary. Such information
shall be appropriately marked as such in accordance with their respective
rules.

6.4       The Parties shall agree on
working arrangements on further procedures for the protection of classified
information provided pursuant to this Agreement as required. Such procedures
shall include the possibility for each Party to verify which protection
measures have been put in place by the other Party.

7.         MANAGEMENT OF THE AGREEMENT

7.1       A Joint Committee is established,
composed of one representative of each Party, who may be accompanied by
observers from Member States of the Parties and experts. The Joint Committee
shall be responsible for the effective functioning of this Agreement.

7.2       A meeting of the Joint Committee
shall be convened at least once a year to evaluate and review the
implementation of this Agreement and shall be organised cost-effectively.
Either Party may request a meeting of the Joint Committee at any time.

7.3       The Joint Committee may consider
any matter related to the functioning and implementation of this Agreement. In
particular, it shall be responsible for:

a)         resolving any question relating
to the application and implementation of this Agreement;

b)         considering ways to enhance the
implementation of this Agreement and make, as appropriate, recommendations to
the Parties for its amendment;

c)         identifying new subjects for
cooperation;

d)         adopting and amending Annexes
and working arrangements within the scope of this Agreement;

e)         resolving any difference or
dispute concerning the interpretation or application of this Agreement.

7.4       The Joint Committee shall operate
on the basis of agreement between the representatives of the Parties.

7.5       The Joint Committee shall adopt
its rules of procedure.

8.         FINANCING

8.21     A Party requesting support
activities to be performed under this Agreement by the other Party shall ensure
the funding of such activities.

8.12     Financial aspects related to the
cooperation under this Agreement shall be defined in accordance with the rules
applicable to the Parties’ respective budgets. The Parties shall conclude
separate arrangements, where appropriate.

9.         EXTERNAL RELATIONS AND
COOPERATION

9.1       Each Party shall inform the other
of its activities of an international dimension pertinent to this Agreement
which may be of interest to the other Party.

9.2       Whenever appropriate a Party may,
in relation to any matters relevant to its international activities, consult
the other Party.

10.       DISPUTE RESOLUTION

10.1     The Parties shall make every
effort to resolve any differences between them arising from their cooperation
under this Agreement.

10.2     In the event that any difference
is not resolved, either Party may refer the dispute to the Joint Committee,
which shall consult on the matter with a view to resolving it by negotiation.

11        EXCHANGE OF PERSONNEL

Subject to their respective rules and
procedures, the Parties may exchange and second personnel as required to pursue
the activities described in this Agreement or in Annexes thereto. All such
exchanges shall be in accordance with the terms and conditions as agreed
between the Parties.

12        ANNEXES

The Annexes to this Agreement shall form an
integral part of this Agreement.

13        ENTRY INTO FORCE AND
TERMINATION

13.1     Pending its entry into force, this
Agreement shall be applied provisionally from the date of signature.

13.2     This Agreement shall enter into
force when the Parties have notified each other in writing that their
respective internal procedures necessary for its entry into force have been
completed and shall remain in force until terminated.

13.3     This Agreement may be terminated
at any time by either Party. Such termination shall be effected by six months’
written notification from one Party to the other Party unless the said notice
of termination has been withdrawn by mutual consent of the Parties before the
expiry of this period.

Done in Brussels on

For the European Union

For the European Organisation for the
Safety of Air Navigation